commissions of the French King and his officials and governors, in which it is referred to as to the land drained by such a stream. Now I will read from Sir Travers Twiss' work, the second edition, page 196.

LORD ABERDARE.—Did the French claim all the land which was watered by the tributaries of the Mississippi from the east to the west ?

Mr. MCCARTHY.—Yes ; in fact they did, I mean the discoverer La Salle proclaimed that on his discovery.

Sir ROBERT COLLIER.—According to that view, if a few miles of the coast on either side of the mouth of a river were discovered and settled you might claim any extent of country you like to suppose.

LORD ABERDARE.—That is to say that the discoverer of the mouth of the Mississippi, or the land on either side of the Mississippi, could claim not only the lands on the line of the Mississippi, but all the lands watered by the enormous tributaries of the Mississippi on either side.

Mr. MCCARTHY.—That is what the French claimed and what La Salle claimed when he erected the post and put the French arms upon it. Then the portion of that west of the Mississippi was ceded to Spain, and then Spain gave that to the States, and then the question arose, and it was with regard to that that this passage, which I am going to refer to was dealt with. That is Sir Travers Twiss' book, and I am reading at present at page 196.

Sir BARNES PEACOCK.—But what treatise is it—on International Law, I suppose ?

Mr. MCCARTHY.—Yes.

Sir ROBERT COLLIER.—You may read it valeat quantum.

Mr. MCCARTHY.—
“The Exclusive right of a nation to territory which it has acquired by occupation has been universally recognized by the nations of Europe and in respect of such right certain rules have become established by usage, whereby the condition of law constituting occupation may be placed beyond doubt. The natural right of an individual to appropriate——”

Then he goes on to give the reasons for that, which I need not trouble your Lordships with reading. Then section 119:

“A nation is under an obligation towards other nations analogous to that under which an individual stands towards other individuals with regard. to the discovery of a thing. If it seeks to found an exclusive title to its possession upon the right of discovery, it must manifest in some way or other to other nations its intention to appropriate the territory to its own purposes. The comity of nations then sanctions a presumption, that the execution of the intention will follow within a

reasonable time the announcement of it. But natural reason requires that the discovery should be notified to other nations, otherwise if actual possession has not ensued, the obvious inference would be that the discovery was a transient act and that the territory was never taken possession of animo et facto.”

Then he says that the meaning of notification is, either by notifying it formally, or taking possession. Then we come to section 120, which I do not think I need read to your Lordships. Then section 122 :

“When discovery has been followed by the settlement of a nation, other nations, in accordance with the law of nature, recognize a perfect title in the occupant. Where discovery has not been immediately followed by occupation, but the fact of discovery has been notified, other nations, by courtesy, pay respect to the notification, and the usage of nations has been to presume that settlement will take place within a reasonable time ; but unless discovery has been followed within a reasonable time by some sort of settlement, the presumption arising out of notification is rebutted by non-user, and lapse of time gives rise to the opposite presumption of abandonment.”

That point does not become important here because there was the occupation. Now here is section 123, as to the extent of right which the discovery gives:

“The two rules generally, perhaps universally, recognized and consecrated by the usage of nations, have followed from the nature of the subject.”

This is quoting now from Mr. Gallatin on the other side, the plenipotentiary of the United States, who thus states his view:

“By virtue of the first, prior discovery gave a right to occupy, provided that occupancy took place within a reasonable time, and was ultimately followed by permanent settlement and by the cultivation of the soil. In conformity with the second, the right derived from prior discovery and settlement was not confined to the spot discovered or first settled. The extent of territory which would attach to such first discovery, gave the right of occupancy, and ultimately of sovereignty, to the whole country drained by such river and its several branches, has been generally admitted, and in a question between the United States and Great Britain, her acts have with propriety been appealed to, as shewing that the principles on which they rely accord with their own.”

Now comes Sir Travers Twiss' view upon that:

“The question as to the extent of territory over which the discovery of a part given rise to the right of occupancy, may receive a solution by reference to the principles of law which decide to what extent actual possession must go in order to give a title to more than is actually inhabited. It is not necessary, in order to constitute the occupant of a

thing the local proprietor of it, that he should have actual possession of the whole of it. If he has possession of a part, which cannot be separated from the whole, he is in possession of the whole.”

Then section 125 is :

“The principles applicable to such question were discussed by the commissioners of the United States of America, in the negotiations with the commissioners of Spain, on the subject of the western boundary of Louisiana “—which is just the point which your Lordship was putting to me a moment ago—” 'The principles,' they observe, 'which are applicable to the cases are such as are dictated by reason, and have been adopted in practice by European nations in the discoveries and acquisitions which they have respectively made in the New World. They are few, simple, intelligible, and at the same time founded in strict justice. The first of these is, that when any European nation takes possession of any extent of sea coast, that possession is understood as extending into the interior country, to the sources of the rivers emptying within that coast, to all their branches and the country they cover, and so give it a right in exclusion of all other nations to the same. It is evident that some rule or principle must govern the rights of European powers in regard to each other in all such cases, and it is certain that none can be adopted, in those cases to which it applies, more reasonable or more just than the present one. Many weighty considerations shew the propriety of it. Nature seems to have destined a large range of territory so described for the same society ; to have connected its several parts together by a common interest, and to have detached them from others. If this principle is departed from, it must be by attaching to such discovery and possession a more enlarged or contracted scope of acquisition, but a slight attention to the subject will demonstrate the absurdity of either. The latter would be to restrict the rights of a European power who discovered and took possession of a new country, to the spot on which its troops or settlements rested, a doctrine which has been totally disclaimed by all the powers who made discoveries and acquired possessions in America. The other extreme would be equally improper, that is, that the nation who made such discovery should, in all cases, be entitled to the whole territory so discovered.”

Then he speaks of an island and says that if an island be discovered it all goes. At section 126 he says :

“The position of law maintained on behalf of the United States by Mr. Gallatin, in 1827, above alluded to, had been previously advanced by Mr. Rush, in 1824, when resident as Minister Plenipotentiary of the United States in London. 'I asserted,' he writes to the American Secretary of State, Hon. J. Quincy Adams, 'that a nation discovering a country by entering the mouth of its principal river at the sea coast, must necessarily be allowed to claim and hold as great an extent of the

interior country as was described by the course of such principal river and its tributary streams.' The plenipotentiaries of the United States in support of their position appealed to the language of ancient charters——”

“It was replied on behalf of the British plenipotentiaries, that those charters had no valid force or effect against the subjects of other sovereigns, but could only bind and restrain, vigore suo, those who were under the jurisdiction of the grantor of the charters, and that although they might confer on the grantees an exclusive title against the subjects of the same sovereign power, they could only affect the subjects of other sovereign powers so far as the latter might be bound, by the common law of nations, to respect acts of discovery and occupation effected by the members of other independent political communities.”

Lord ABERDARE.—That last position does not seem to have been contested by Rush.

Mr. MCCARTHY.—Yes, my Lord, he contended for a much wider position. He contended that the mere discovery of the land near a river gave the whole of the territory ; the British said not.

Lord ABERDARE.—Although a part of the land watered by the tributaries or the principal river had been already occupied.

Mr. MCCARTHY.—No, My Lord, I do not think that is contended. The discoveries were always from the sea in this country, and being from the sea there could be hardly any foreign power or rival power at the head of the stream. At section 127 then he says :

“The principle involved in the position of law advanced by the United States on the above occasions, seems not to be reconcilable with other positions of law in which all nations agree. It is inconsistent in the first place, with one of the positions of law upon which the United States themselves rested their claims against Spain respecting the boundary of Louisiana, in 1805, namely, that the discovery and occupation of an extent of sea coast by a nation are understood to convey to that nation a right of possession over the interior country as far as the watershed line, which position of law Messrs. Monroe and Pinckney the commissioners of the United States, then alleged to have been completely established by the controversy between France and Spain on the one hand, and Great Britain on the other, which produced the war of 1755 between those nations. It is obvious that a claim to all the lands watered by a river and its tributaries, founded on the discovery and occupation of the mouth of the river, must conflict with a claim to all the inland territory, as far as the line of watershed, founded on the discovery and occupation of an extent of sea coast, about which latter position of law there is no dispute amongst nations.”

Now there are many authorities—it is not merely Sir Travers Twiss—to the same effect, and all of them are quite consistent with what I have read. My learned friend will refer to them more in detail. But what is the reason of it ? One reason is given in the book which I have just read. Another reason is that if you allow a rival nation to come to the head waters of the stream you would have no opportunity of defending yourselves against them ; they would come down with ease and swiftness, and without any opportunity being afforded of preparing for defence. And therefore it has been essential in the settlement of these new countries that some such reasonable rule should be adopted. I refer also to Sir Robert Phillimore's work, the second edition, volume 1, pages 277 and 279, where he lays it down in the same very clear and unmistakeable terms to which I have just referred.
Those are the propositions of law for which we contend ; and now to apply them.

Mr. ROBINSON.—What we do contend, my Lord is this. I am anticipating my argument there, because I wish first to try and settle the construction of the charter as to what the word “granted” meant ; but what we do contend is that the English, beyond all question, had obtained Hudson's Bay and whatever goes under the construction of international law with that discovery. They had discovered Hudson's Bay ; they had taken possession of a considerable portion of the coast. Whatever, according to the rule of international law they acquired by that discovery the English had.

The LORD CHANCELLOR.—What was that ?

Mr. ROBINSON.—I cannot say.

The CHANCELLOR.—Then, when different nations are disputing about boundaries, they have recourse to abstract reasoning and certain principles and so on ; but to represent that as a rule of international law—and especially as a rule of international law which had any existence or was imagined by anybody at the time we have to consider in this enquiry—is surely a proposition which cannot be maintained. You might just as well go back to the time at which the Pope was supposed, by international law, to be able to give away whatever districts in the world he pleased. Those words “international law” are very misleading. There are certain principles generally accepted amongst nations ; there are particular reasons which have been constantly resorted to when disputes have taken place, about boundaries or otherwise, between nations, as the best available means of settling those disputes ; but to say that there is any general international law that gives to the first discoverer of the mouth of a river and a certain line of coast, as against all other nations, whether he occupies it or not, or without regard to what extent it is occupied or not, a right to all the country that is watered

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